G.R. No. L-25895 July 23, 1971
He is Appointments, the then Senator Rodolfo
FELIZARDO S. PACETE, petitioner,
vs.
THE SECRETARY OF THE
COMMISSION ON APPOINTMENTS
CONGRESS OF THE PHILIPPINES,
THE SECRETARY OF JUSTICE and
THE DISBURSING OFFICER OF THE
DEPARTMENT OF
JUSTICE, respondents.
Petitioner in his own behalf.
Office of the Solicitor General for
respondents.
FERNANDO, J.:
The question raised in
this mandamus and prohibition
proceeding, whether the filing of a
motion for reconsideration with the
Commission on Appointments, without its
being thereafter acted on, suffices to set
at naught a confirmation duly made of an
ad interim appointment, is not a new
one. That was put to us in Altarejos v.
Molo.1 As set forth in the opinion of the
Chief Justice, the answer must be in the
negative. The confirmation stands; it
must be given force and effect. As we
decided then, so we do now. As a
consequence, petitioner, as will be more
fully explained, has made out a case
for mandamus and prohibition.
entitled to the remedies prayed for.
The facts are undisputed. In his suit
for mandamus and prohibition filed with
this Court on April 4, 1966, petitioner
Felizardo S. Pacete alleged that he was
appointed by the then President of the
Philippines on August 31, 1964 as
Municipal Judge of Pigcawayan,
Cotabato. He assumed office on
September 11, 1964 and discharged his
duties as such. As his appointment was
made during the recess of Congress, it
was submitted to the Commission on
Appointments at its next session in 1965.
On May 20 of that year, he was
unanimously confirmed. As a matter of
fact, two days later, he was sent a
congratulatory telegram by the then
Senate President Ferdinand E. Marcos,
who was likewise the Chairman of the
Commission on Appointments.2 More
than nine months after such
confirmation, to be exact on February 7,
1966, the then Secretary of Justice,
whom he likewise included in his petition,
through the Judicial Superintendent,
advised petitioner to vacate his position
as municipal judge, the ground being
that his appointment had been by-
passed. Petitioner was taken by surprise
and sought clarification from the principal
respondent, the then Secretary of the
Commission on Appointments.3 He was
informed that on May 21, 1965, a day
after his confirmation, one of the
members of the Commission on
Guanzon, wrote to its Chairman stating
that he was filing a motion for the
reconsideration of the confirmation of the
appointment of petitioner as municipal
judge of Pigcawayan, Cotabato, in view
of derogatory information which he had
received.4 Respondent Secretary of the
Commission on Appointments thus was
led to notify the then Secretary of Justice
accordingly, following what he
considered to be the prevailing practice
of such body that the mere presentation
of such letter "automatically vacated the
confirmation of the appointment in
question ... ."5 Respondent Secretary of
Justice through the Judicial
Superintendent then advised petitioner
that he should vacate his position as
municipal judge, as he had not been duly
confirmed. The Disbursing Officer of the
Department of Justice was likewise
named respondent as he had, as a
consequence, withheld petitioner's
salaries.6
Petitioner would buttress his plea for
prohibition against the enforcement of
the directive of respondent Secretary of
Justice for him to vacate his position
and mandamus to compel respondent
Secretary of the Commission on
Appointments to issue to him the
certificate of confirmation on the ground
that the letter of the then Senator
Guanzon, even on the assumption that it
was a motion to reconsider an
appointment duly confirmed, was without
force and effect as it was not approved
by the body as a whole. It is his
contention that the confirmation of his
appointment had become final and
executory upon the adjournment of the
fourth regular session of the Fifth
Congress at midnight of May 21,
1965.7 He further submitted "that the
power to approve or disapprove
appointments is conferred by the
Constitution on the Commission on
Appointments as a body and not on the
members individually. The Commission
exercises this power thru the vote of the
majority of the members present at a
quorum as provided by Section 10 of its
Rules. Once an appointment is approved
by that majority, the approval becomes
an act of the Commission and it cannot
be changed, voided, vacated or set aside
except by the same Commission acting
thru the required majority. A mere motion
to reconsider it, unless approved by said
majority, has no force and effect. To
contend otherwise is to make the will of a
single member prevail over the will of the
Commission and to make that member
more powerful than the very Commission
of which he is only a part."8
In a resolution dated April 13, 1966, this
Court required respondents to answer
such petition. In the answer of
respondent Secretary of the Commission
filed on May 18, 1966, the dismissal of
the suit was prayed for on the ground
that there was a recall of the
confirmation of petitioners appointment
upon the filing of the motion for
reconsideration by Senator Ganzon. It
was likewise alleged as a special
defense that there was no infringement
of the Constitution, the question involved
being merely one of interpretation or
construction of the rules of the
Commission involving its internal
business which cannot be made a
subject of judicial inquiry.9 The
respondent Secretary of Justice as well
as respondent Disbursing Officer of the
Department of Justice, in the answer
filed on their behalf on May 21, 1966 by
the then Solicitor General, now
Associate Justice, Antonio P. Barredo,
admitted the facts, but sought the
dismissal of the petition on the ground
that with the notification of respondent
Secretary of the Commission on
Appointments that petitioner's
appointment was not duly confirmed,
respondent Secretary of Justice had no
alternative but to give it full faith and
credence coming as it did from the
agency entrusted by the Constitution
with the power to confirm. 10
At the hearing scheduled on July 20,
1966, the parties after arguing were
given an additional period of ten days
within which to submit memoranda of
authorities. In petitioner's memorandum
submitted on August 1, 1966, it was
contended that his confirmation became
final and irrevocable upon the
adjournment of the fourth regular session
of the Fifth Congress on May 21, 1965,
as no rule of the Commission as to a
motion for reconsideration could have
the force and effect of defeating the
constitutional provision that an ad
interim appointment is effective "until
disapproved by the Commission on
Appointments or until the adjournment of
the next session of the
Congress." 11The memorandum
submitted for the respondents squarely
disputed such contention on the view
that there could be no confirmation in the
constitutional sense until a motion for
reconsideration had been turned down,
invoking at the same time the principle of
the respect to be accorded the actuation
of an independent constitutional agency
like the Commission on Appointments.
As was noted, the controlling principle is
supplied by Altarejos v. Molo, 12 which
interpreted Rule 21 of the Revised Rules
of the Commission on Appointments,
which reads: "Resolution of the
Commission on any appointment may be
reconsidered on motion by a member
presented not more than one (1) day
after their approval. If a majority of the
members present concur to grant a
reconsideration, the appointment shall
be reopened and submitted anew to the
Commission. Any motion to reconsider
the vote on any appointment may be laid
on the table, this shall be a final
disposition of such a motion." Our
holding was that the mere filing of a
motion for reconsideration did not have
the effect of setting aside a confirmation.
There was a need for its being duly
approved. Hence, as set forth at the
outset, petitioner must prevail.
1. Altarejos v. Molo was an original
action for mandamus to compel
respondent therein as Secretary of the
Commission on Appointments to issue a
certificate of confirmation of petitioner's
appointment as Provincial Assessor of
Masbate. He was extended an ad interim
appointment on July 24, 1964. He took
his oath of office and qualified as such
on August 1, 1964. His appointment was
then submitted to the Commission on
Appointments during the regular session
of Congress in 1965. It was confirmed by
the Commission on Appointments on
May 19, 1965. On same day, a member
thereof, Congressman Jose Aldeguer,
filed with its Secretary, respondent Molo,
a motion for reconsideration. The next
day, there was a motion by the then
Senator Francisco Rodrigo that all
pending motions be laid on the table. It
was approved. Then came the
adjournment on May 20, 1965.
Subsequently, about a week later,
Congressman Aldeguer withdrew his
motion for reconsideration. 13
This Court gave full attention to the
argument that motion for reconsideration
of Congressman Aldeguer on May 19,
1965 had the effect of recalling the
confirmation of petitioner's appointment
and that, accordingly, it should be
considered non-existent. It rejected it.
The Chief Justice, who spoke for the
Court, explained why: "This pretense is
devoid of merit. Respondent's theory
would give to the mere filing of a motion
for reconsideration the effect which it
would have if the motion were approved,
and hence, would dispense with the
necessity of such approval, for which the
concurrence of a majority of the
members present is necessary. It is
inconsistent with Rule 21 of the Revised
Rules of the Commission, reading: "...
Resolution of the Commission on any
appointment may be reconsidered on
motion by a member presented not more
than none * (1) day after their approval. If a majority
of the members present concur to grant a
reconsideration, the appointment shall be reopened and
submitted anew to the Commission. Any motion to
reconsider the vote on any appointment may be laid on
the table, this shall be a final disposition of such a
motion." 14 His opinion continued: "Pursuant to this
provision, the vote of a majority of the members present
in favor of the motion for reconsideration is necessary to
"reopen" the appointment — and, hence, to "recall" its
confirmation - and to require a resubmission of the
appointment for confirmation." 15 Moreover, in holding that
this Court "cannot escape the conclusion that petitioner's
appointment as Provincial Assessor of Masbate" had
been duly confirmed, the Chief Justice likewise noted the
categorical answer of the Chairman of the Commission
on Appointments to a question by Senator Almendras as
to the effect of motions for reconsideration unacted upon
after adjournment. Thus: "In case of an adjournment sine
die, the motions for reconsideration are considered as not
approved and therefore the motion for reconsideration
are not valid for of any effect whatsoever." 16 When the
question was repeated by Senator Almendras, who did
not want to leave any doubt on the matter, this was the
reply of the Chairman: "The ruling of the Chair is
reiterated. In case of an adjournment sine die, the period
for filing the motion for reconsideration having expired,
under Sec. 22, then the motion for reconsideration not
having been acted upon is not approved and, therefore,
has no effect whatsoever. The confirmation, therefore,
will stand." 17
Nothing can be clearer, therefore, than
that this Court is committed to the
principle that a mere motion for
reconsideration to a confirmation duly
made which is not approved cannot have
the effect of setting aside such
confirmation, a principle that is based not
merely on the express language of Rule
21, but a reflection of the settled
interpretation of the Commission on
Appointments speaking through its
Chairman. While on certain aspects not
material, the facts of this case may be
distinguished, from Altajeros v. Molo,
there being no motion to lay on the table
and no withdrawal of such motion for
reconsideration, the principle that calls
for application cannot be any different.
What is decisive is that a confirmation
duly made is not nullified simply by a
motion for reconsideration being filed,
without its being voted upon and
approved.
2. The Altarejos ruling possesses the
merit of interpreting Rule 21 of the
Commission on Appointments
conformably to the letter and spirit of the
constitutional provisions on the
appointing power of the President. The
first one reads: "The President shall
nominate and with the consent of the
Commission on Appointments, shall
appoint the heads of the executive
departments and bureaus, officers of the
Army from the rank of colonel, of the
Navy and air forces from the rank of
captain or commander, and all other
officers of the Government whose
appointments are not herein otherwise
provided for, and those whom he may be
authorized by law to appoint; but the
Congress may by law vest the
appointment of inferior officers, in the
President alone, in the courts, or in the
heads of departments." 18 The other
provision is worded, thus: "The President
shall have the power to make
appointments during the recess of the
Congress, but such appointments shall
be effective only until disapproval by the
Commission on Appointments or until the
next adjournment of the Congress." 19
A distinction is thus made between the
exercise of such presidential prerogative
requiring confirmation by the
Commission on Appointments when
Congress is in session and when it is in
recess. In the former the President
nominates, and only upon the consent of
the Commission Appointments may the
person thus named assume office. It is
not so with reference to ad interim
appointments. It takes effect at once.
The individual chosen may thus qualify
and perform his function without loss of
time. His title to such office is complete.
In the language of the Constitution, the
appointment is effective "until
disapproval by the Commission on
Appointments or until the next
adjournment of the Congress." 20
The constitutional requirement is clear.
There must either be a rejection by the
Commission on Appointments or
nonaction on its part. No such thing
happened in this case. Petitioner, as
pointed out, had instead in his favor a
unanimous vote of confirmation. He
could thus invoke constitutional
protection. For respondents to argue that
the mere filing of a motion for
reconsideration did suffice to set it aside,
even in the absence of any further
action, is, as stressed by petitioner, to
lose sight of what is provided in the
Constitution. That would be moreover
tantamount to imparting to a move of a
single member of a collective body a
decisive weight. It is bad enough if the
minority were to prevail. A one-man rule,
which is the effect of what respondent
Secretary of the Commission on
Appointments contends, is infinitely
worse. It is indefensible in principle and
pernicious in operation. It can find no
shelter in the constitutional prescription.
Rather it makes a mockery of what is
therein ordained. Petitioner's stand is
thus unassailable.
3. Nor does the insistence of respondent
Secretary of the Commission on
Appointments, in his answer, that the
question involved is beyond the
jurisdiction of this Court, elicit approval. It
would extend the boundaries of the
political question doctrine beyond its
legitimate limits. The courts are called
upon to see to it that private rights are
not invaded. Thus even legislative acts
and executive orders are not beyond the
pale of judicial scrutiny. Certainly there is
nothing sacrosanct about a rule of the
Commission on Appointments, especially
so, when as in this case, a construction
sought to be fastened on it would defeat
the right of an individual to a public
office. It certainly can be inquired into in
an appropriate case, although the utmost
deference should be paid to the
interpretation accorded it by the
Commission on Appointments itself. In
the terse language of Justice Brandeis,
speaking of the rules of the United
States Senate, which, under its
Constitution, has the task of
confirmation: "As the construction to be
given to the rule affects persons other
than members of the Senate, the
question presented is of necessity a
judicial one." 21The task becomes
unavoidable when claims arising from
the express language of the Constitution
are pressed upon the judiciary. So it is in
this case. It is a truism that under the
circumstances, what cannot be ignored
is the primacy of what the fundamental
law ordains.
Such an approach, it is heartening to
note, is implicit in the memorandum on
behalf of respondent Secretary of
Justice, submitted by the then Solicitor
General Barredo. Thus: "Although the
Commission On Appointments is not a
power in our tripartite system of
government, it is to all intents and
purposes, like the Electoral Tribunals,
when acting within the limits of its
authority, an independent organ. (Cf.
Angara vs. Electoral Commission, 63
Phil. 139) Its actuation in the exercise of
its power to approve appointments
submitted to it by the President of the
Philippines is exempt from judicial
supervision and interference, except on
a clear showing of such arbitrary and
improvident use of the powers as will
constitute a denial of due process. (Cf.
Morero vs. Bocar, 37 O.G. 445)." 22 As
due process is impressed with both
substantive and procedural significance,
the scope of judicial inquiry is thus not
unduly limited.

WHEREFORE, petitioner is entitled to

the writ of mandamus and the Secretary
of the Commission on Appointments is
commanded to issue the certificate of
confirmation prayed for by petitioner. The
incumbent Secretary of Justice is
prohibited from giving any further force
and effect to the Department of Justice
directive of February 7, 1966 advising
petitioner to vacate his position as
municipal judge in view of the
communication received from then
Secretary of the Commission on
Appointments, inasmuch as the right of
petitioner to perform his functions as
municipal judge of Pigcawayan,
Cotabato is in accordance with law, his
confirmation having been duly confirmed.
No pronouncement as to costs.